Friday, May 22, 2020

Memorial Day 2020


This is my fourteenth consecutive Memorial Day message. You can find the previous thirteen at the end of this one.
I confess I never imagined that I would be writing one in the midst of a pandemic that caused a near virtual lockdown of the nation. A shutdown from which, thankfully, we are now beginning to emerge, hopefully, with the American can-do entrepreneurial spirit as strong as ever.

Memorial Day, foremost, is always about memory. Pausing to remember those who paid the ultimate price defending our country and protecting our freedom and the American way of life.

In the past, of course, I have called to mind the sacrifices of those men and women in our Armed Forces who died in the service of our country. And I do so again this year, as always – for we should never forget, as Lincoln declared at Gettysburg: "That from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain."
But who can doubt that this year, on this Memorial Day, we should not also solemnly remember all the doctors, nurses, physician assistants, other medical personnel – and all other myriad first responders and essential front-line workers – who have risked their lives, and in some instances sacrificed them, to secure the well-being of us all. Like our fallen soldiers, we remember their sacrifice and honor their memory on this Memorial Day.
In his Farewell Address, Ronald Reagan reminded us: "If we forget what we did, we won't know who we are. I am warning of an eradication of that – of the American memory that could result, ultimately, in an erosion of the American spirit." Despite our political and philosophical differences, and they provide fodder for meaningful discourse on other occasions, I continue to hold strongly to a faith in American exceptionalism and an indomitable American spirit that runs deeper than shades of blue and red.

A warning against erosion of the American spirit is never out of place, especially when America is at war or confronting a challenge like the present one. So, too, a warning against forgetting those we honor – this year, both all the fallen servicemen and servicewomen and all those on the front lines of fighting the coronavirus pandemic who have paid the ultimate price. All Americans owe it to the fallen to pursue a common goal of now reinvigorating America at this special time in our nation's history.

I say once again what Cicero declared over two thousand years ago: “The life of the dead is placed in the memory of the living."

I wish you and your family the best for a safe, healthy, happy, and meaningful Memorial Day!

PS – My past Memorial Day messages are here: 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007.

Congress Urged to Provide Stay Connected Vouchers to Impacted Americans

As of May 14, over 750 broadband providers and trade associations have signed on to the FCC’s Keep Americans Connected Pledge. In addition, many have gone above and beyond those commitment by, for example: temporarily suspending data caps and overage charges; offering free or discounted service to students, educators, and front-line medical personnel; and waiving charges for low-income households enrolled in the Lifeline program. In a May 13 FSF Perspectives, I provided numerous examples of the voluntary actions ISPs have taken.

However, the COVID-19 pandemic will continue to impact countless Americans financially for the foreseeable future. In a blog post earlier this week, I described a provision in the HEROES Act passed by the House of Representatives on May 15 that would make nearly $9 billion available to the FCC to reimburse eligible providers offering discounted service (up to $50 per month) and devices (up to $100) to eligible consumers for the duration of this crisis and six months thereafter.


Another proposal would provide Stay Connected Vouchers directly to consumers. Described by Steven Berry, President and Chief Executive Officer of the Competitive Carriers Association, in testimony before the Senate Committee on Commerce, Science, and Transportation on May 13, Stay Connected Vouchers would enable affected households to continue accessing essential communications services without amassing high account balances.

Broadband providers that adopt the Keep Americans Connected Pledge agree not to terminate service, and waive late fees, for those unable to make payments due to the novel coronavirus. But those payments are postponed, not erased. At some point in the future payment will be required. The Commission has extended through the end of June the period of time during which Pledge commitments apply, and that provides substantial short-term relief. But the fact remains that the longer this situation goes on, the greater the deferred financial obligation will be for affected individuals.

Stay Connected Vouchers would address this issue by establishing a longer-term safety net. Eligible households would receive two $50 vouchers each month during the COVID-19 crisis. Recipients could use them to pay for whatever communications service(s) they choose: text, voice, video, mobile or fixed broadband. Vouchers would expire six months after the end of the public-health emergency.

Proponents claim that a primary benefit of the Stay Connected Voucher program, which would be administered by the FCC, is its focus on practical and administrative expediency: by leveraging eligibility criteria and distribution mechanisms already in use for stimulus payments under the CARES Act, it would allow consumers to receive relief quickly.

Thursday, May 21, 2020

FCC Proposing to Keep "Broadcast Internet" Services Free From Legacy Regulations

On May 18, FCC Commissioner Brendan Carr delivered a keynote address as part of the National Association of Broadcasters' event on "Broadcast Internet: The Future of ATSC 3.0" Commissioner Carr discussed the potential for ATSC 3.0 technology to deliver 25 Mbps "broadcast Internet" services, including IoT, smart agriculture, and telemedicine services. At its public meeting on June 9, the FCC will consider a proposed rulemaking that would ensure that the intriguing innovative and competitive potentialities of ATSC 3.0 and broadcast Internet services remain free from legacy broadcast regulations. Also check out the Commissioner announcement of the upcoming vote. 

Wednesday, May 20, 2020

FCC's 5G Upgrade Order Will Fast-Track Improvements to Wireless Networks

At its public meeting on June 9, the FCC will consider a proposed order and further notice of rulemaking that will clarify what wireless infrastructure upgrades and modifications to existing sites are "non-substantial" and therefore qualify for expedited and streamlined review under Section 6409(a) of the Spectrum Act of 2012 and the Commission's rules. As just described, the proposed 5G Upgrade Order addresses changes made to existing sites, not new sites. And it does not establish any new rules but clarifies rules adopted by the Commission in 2014. 

Wireless infrastructure upgrades are essential to timely deployment of next-generation mobile networks, including 5G networks. Apparently, interpretations of the Commission's rules have varied widely in different localities, and in some cases its rule have been interpreted to slow or halt infrastructure upgrades to existing sites rather than expedite them. In October 2019, Free State Foundation President Randolph May and I filed public comments with the Commission recommending issue several interpretations of its rules in order to clarify what types of modifications to existing cell towers and base stations qualify for streamlined treatment. 

The Commission's proposed 5G Upgrade Order will help accelerate advanced wireless network deployment and increase Americans' access to high-speed broadband. It deserves a passing vote at the agency's June public meeting. Credit especially goes to Commissioner Brendan Carr for spearheading this latest agency initiative on wireless infrastructure deployment.   

Tuesday, May 19, 2020

FCC, House Pursue Different Approaches to Keeping Americans Online

Americans continue to suffer the economic consequences of the COVID-19 pandemic. Both the FCC and the House of Representatives recently took steps to prevent those struggling to pay their bills from being forced offline. The former did so via a renewed appeal for voluntary action. The latter passed legislation imposing specific obligations and establishing a reimbursement program for providers of discounted service.

May 13 FSF Perspectives describes how, on March 13, FCC Chairman Ajit Pai called upon the broadband industry to take the Keep Americans Connected Pledge. ISPs and trade associations that agreed to do so committed to maintaining service for those impacted financially by the novel coronavirus, waiving late fees, and allowing members of the public to access their Wi-Fi hotspots.


The time period covered by that pledge originally was to end on May 12. However, on April 30 the Commission extended it through the end of June. On May 14, it announced that a total of 774 broadband and telephone providers were on board. After the FCC concluded that additional relief was appropriate, the number of signatories went up, not down.

Meanwhile, on May 15, the House passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, which now awaits consideration by the Senate. Section 130401 of that bill converts the voluntary commitments solicited by the FCC into legal requirements that would remain in effect for the duration of this public health emergency.

It also prohibits broadband ISPs from enforcing data caps and charging for overages. Though beyond the scope of the Keep Americans Connected Pledge, a number of providers already had elected to take these additional steps, actions approvingly acknowledged by the Commission.

However, another provision of the HEROES Act, Section 130301, does create an $8.8 billion Emergency Broadband Connectivity Fund to provide reimbursements to eligible providers offering discounted service. Notably and explicitly, eligible providers need not be designated as eligible telecommunications carriers (ETCs) under Section 214(e) of the Communications Act.

Section 130301 directs the FCC to establish, within seven days of enactment (that is, without first conducting a notice-and-comment rulemaking), a program by which eligible households would receive a monthly discount of up to $50 on Internet service for the duration of the current crisis. The Commission would reimburse eligible providers for providing that discount, as well as up to $100 for supplying a laptop, desktop PC, or tablet

Eligible households are those that include at least one consumer who: meets the qualifications to participate in the Lifeline program, has been approved to receive free or reduced price breakfast or lunch at school, or has experienced a verifiable and substantial loss of income during since February 29.

Reimbursable monthly discounts would be made available for the duration of the COVID-19 public health emergency and six months thereafter.

Monday, May 18, 2020

Audio of Conversation on the FCC, Broadcast Journalism, and the First Amendment

Audio is now available for Free State Foundation President Randolph J. May's Federalist Society teleforum conversationwith FCC General Counsel Thomas M. Johnson, Jr. on broadcast journalism and the First Amendment. In the teleforum, they discuss the agency's responseto the emergency petition filed by Free Press that sought to investigate and censor broadcasters covering presidential press conferences and offering commentary on COVID-19. Tune in to hear an insightful exchange regarding First Amerndment principles and the FCC's approach to free speech issues. The audio is available for streaming and for download at the Federalist Society's website.

Wednesday, May 13, 2020

Four Facts About the FCC's Ligado Order

The following tweets by Free State Foundation President Randolph J. May respond to Sen. Jim Inhofe's floor speech on May 12 regarding the FCC's grant of Ligado's application of L-Band spectrum for its mixed satellite-terrestrial network:

Tuesday, May 12, 2020

Senate Commerce Committee Members Introduce COVID-19 Privacy Bill

Contact tracing, which involves identifying those who have tested positive for COVID-19 and the people with whom they have interacted, may prove effective in minimizing the spread of the virus and enabling the safe reopening of America. It typically is a labor-intensive effort, but digital tools, such as mobile apps, seek to automate at least part of the process. Such efforts have achieved qualified success in other parts of the world, such as Singapore and South Korea. But the monitoring of citizen movement inevitably implicates personal privacy. Businesses developing contact-tracing technology, and now lawmakers, seek to mitigate that impact.

A number of companies are active in this space, both domestically and internationally. The most high-profile effort involves Apple and Google, rivals that provide the operating system software (iOS and Android, respectively) running on virtually all smartphones. Working together to make available Application Programming Interfaces (APIs) that leverage Bluetooth technology, they have indicated that privacy is a “primary goal.” To that end they recently announced measures, such as prohibiting the collection of GPS location data and allowing only public health officials to deploy apps that utilize those APIs, in response to privacy concerns that have been raised.



In addition, on May 7, five Republican members of the Senate Committee on Commerce, Science, and Transportation – Chairman Roger Wicker (MS), John Thune (SD), Deb Fischer (NE), Jerry Moran (KS), and Marsha Blackburn (TN)  introduced legislation that, according to the Press Release, is designed to “provide all Americans with more transparency, choice, and control over the collection and use of their personal health, device, geolocation, and proximity data” and “hold businesses accountable to consumers if they use personal data to fight the COVID-19 pandemic.”

Specifically, the COVID-19 Consumer Data Protection Act of 2020 (CCDPA) would regulate “covered data” collected and used to:
  • Track the spread, signs, or symptoms of COVID-19;
  • Measure compliance with social distancing guidelines and other requirements; and
  • Conduct contact tracing.
Covered data includes:
  • Precise geolocation data;
  • Proximity data;
  • A persistent identifier; and
  • Personal health information.
It does not include:
  • Aggregated data;
  • Business contact information;
  • De-identified data;
  • Employee screening data; and
  • Publicly available information.
Should the CCDPA become law, “covered entities,” among other things, would be required to:
  • Provide individuals with clear and transparent notice regarding how their data will be handled, to whom it will be transferred, and how long it will be retained;
  • Obtain “opt-in” consent before collecting or using that data;
  • Limit that collection to what reasonably is necessary;
  • Ensure that that data is accurate (and allow individuals to correct inaccurate data);
  • Implement appropriate data security policies and practices; and
  • Provide a means for those who do “opt-in” to “opt-out” at a later date.
Covered entities include those that collect, process, or transfer covered data and are:
  • Subject to the FTC's jurisdiction;
  • Common carriers (which would be exempt from Communications Act provisions and FCC rules, other than those relating to 911, in connection with activities covered by the CCDPA); and
  • Nonprofit organizations
Covered entities would be required to issue public transparency reports within 30 days of enactment and no less than every 60 days thereafter providing information on the number of individuals from whom data has been collected, the categories into which it falls, how it is used, and to whom it has been transferred.

The CCDPA would preempt state and local laws “related to the collection, processing, or transfer of covered data for a purpose described” therein and empower the FTC and state attorneys general to enforce its provisions.

The CCDPA would remain in effect only until the Secretary of Health and Human Services declares an end to this public health emergency. Covered entities would be required to delete or de-indentify all covered data at the end of the current crisis.